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Board of County Commissioners of Washington County, Maryland V. Perennial Solar, LLC, No. 66, September Term, 2018, Opinion by Booth, J

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Board of County Commissioners of Washington County, Maryland V. Perennial Solar, LLC, No. 66, September Term, 2018, Opinion by Booth, J Board of County Commissioners of Washington County, Maryland v. Perennial Solar, LLC, No. 66, September Term, 2018, Opinion by Booth, J. MUNICIPAL CORPORATIONS – IMPLIED PREEMPTION – CONCURRENT AND CONFLICTING EXERCISE OF POWER BY STATE AND LOCAL GOVERNMENT State law impliedly preempts local zoning regulation of solar energy generating systems (“SEGS”) that require a certificate of public convenience and necessity (“CPCN”). Maryland Code, Public Utilities Article § 7-207 grants the Maryland Public Service Commission broad authority to determine whether and where a SEGS may be operated. Circuit Court for Washington County Case No.: 21-C-15-055848 Argued: May 2, 2019 IN THE COURT OF APPEALS OF MARYLAND No. 66 September Term, 2018 BOARD OF COUNTY COMMISSIONERS OF WASHINGTON COUNTY, MARYLAND v. PERENNIAL SOLAR, LLC Barbera, C.J. *Greene McDonald Watts Hotten Getty Booth, JJ. Opinion by Booth, J. Filed: July 15, 2019 *Greene, J., now retired, participated in the hearing and conference of this case while an active member of this Court; after being recalled pursuant to the MD. Constitution, Article IV, Section 3A, he also participated in the decision and adoption of this opinion. “Here comes the sun, and I say, It’s all right.” -The Beatles, “Here Comes the Sun” This case involves the intersection of the State’s efforts to promote solar electric generation as part of its renewable energy policies, and local governments’ interest in ensuring compliance with local planning and zoning prerogatives. In this matter, we are asked to determine whether state law preempts local zoning authority with respect to solar energy generating systems that require a Certificate of Public Convenience and Necessity (“CPCN”) issued by the Maryland Public Service Commission. This case began with an application by Perennial Solar, LLC (“Perennial”) to the Washington County Board of Zoning Appeals (“Board”) for a special exception and variance to construct a Solar Energy Generating System (“SEGS”) adjacent to the rural village of Cearfoss in Washington County, Maryland. After the Board granted the variance and special exception, a group of aggrieved landowners sought judicial review of the Board’s decision in the Circuit Court for Washington County. The Board of County Commissioners of Washington County, Maryland (“Washington County” or “the County”) intervened in the case. While the petition for judicial review was pending, Perennial filed a motion for pre-appeal determination challenging the subject matter jurisdiction of the Circuit Court for Washington County on the ground of state law preemption by implication. Prior to considering the merits of the Board’s decision, a hearing was held on Perennial’s motion. The circuit court granted the motion and determined that Maryland Code, § 7-207 of the Public Utilities Article (“PU”) preempts the Washington County Zoning Ordinance and that the Public Service Commission (“PSC”) has exclusive jurisdiction to approve the type of SEGS proposed by Perennial. Washington County appealed the case to the Court of Special Appeals. In a reported opinion, the intermediate appellate court affirmed the judgment of the circuit court. Bd. of Cty. Comm’rs of Washington Cty., et al. v. Perennial Solar, LLC, 239 Md. App. 380 (2018). Washington County petitioned this Court for a writ of certiorari. We granted certiorari to consider the following question:1 Does state law preempt local zoning authority with respect to solar energy generating systems that require a Certificate of Public Convenience and Necessity issued by the Maryland Public Service Commission? For the reasons set forth herein, we answer in the affirmative and affirm the judgment of the Court of Special Appeals. I. FACTUAL AND PROCEDURAL BACKGROUND Perennial filed an application in September of 2015 with the Board for a special exception and variance2 to construct a SEGS3 on two contiguous farms totaling 86 acres. 1 We have rephrased the question for clarity. The question presented in the writ of certiorari was: Whether local zoning authority is preempted by state law with respect to the approval and location of Solar Energy Generating Systems such as the SEGS at issue in this case. 2 Perennial’s variance request was to reduce the internal setback line between the two contiguous properties from the required distance of 50 feet to 0 feet, to allow the rows of solar arrays to cross the property line without interference. 3 Article 28A of the Washington County Zoning Ordinance defines a SEGS as “a grid-tie solar facility consisting of multiple solar arrays whose primary purpose is to 2 The farms are adjacent to Cearfoss, a community designated as a Rural Village4 in the Washington County Comprehensive Plan. The proposed site is located in the Agricultural- Rural (“AR”) zoning district5 in the Washington County Zoning Ordinance (“Zoning Ordinance”). The Zoning Ordinance permits SEGS as a land use in the AR zoning district by special exception. Perennial’s SEGS is designed to produce ten megawatts of electricity, all of which is to be sold and transferred offsite to a wholesale electricity market. The electricity generated by the SEGS would be enough to power 2,100 homes. The Board held a public hearing on Perennial’s application in October of 2015. Testimony was given by witnesses in favor of and in opposition to Perennial’s application.6 The Board also accepted written evidence from both sides relating to the application. generate electricity for distribution and/or sale into the public utility grid and not for onside consumption.” 4 The Washington County Comprehensive Plan defines “Rural Villages” as unincorporated areas of the county which “are definable on the landscape and contribute to the unique character of Washington County. They usually include a small core of a residential neighborhood associated with a retail establishment or an institution such as a post office, elementary school, church or fire station.” Cearfoss has been designated in the Comprehensive Plan as a Rural Village, which presents an opportunity to provide growth through the use of infill development and utilization of existing infrastructure. The Comprehensive Plan states that “[t]houghtful site planning and design based on the traditional rural character should provide for the commercial needs of the rural area in a manor [sic] that better reflects the rural area’s unique and special character.” 5 Under Article 5A of the Washington County Zoning Ordinance, the Agricultural- Rural (AR) zoning district is intended “to provide for continued farming activity and the many uses that do not require public water and sewage facilities and which may be more suitably located outside of the urban-type growth of the larger communities of the County.” 6 The opposition witnesses, many of whom lived in the immediate neighborhood, expressed concerns that the SEGS project would adversely impact their property values, 3 After considering the matter for two weeks, the Board met, deliberated, and granted the request for a special exception and a variance.7 The Board issued a written opinion in November of 2015 in which it determined, among other things, that the intended use conforms to the Washington County Comprehensive Plan and is compatible with the existing neighborhood. The Board found that the site is not located within a Priority Preservation Area, a Rural Legacy Area, or within the Antietam Overlay Zone, which are all areas where SEGS are prohibited under the Washington County Zoning Ordinance. After describing the evidence and testimony, the Board concluded that there was no probative evidence showing that the SEGS would have any greater adverse effects above and beyond those inherently associated with the special exception use irrespective of its location within the zone. The Board granted the variance from the minimum setback to allow the SEGS to be built over the common property line separating the two contiguous parcels, finding that strict compliance with the setback requirements would cause practical difficulty for the project and that a variance to a zero-foot setback would not cause any harm to public safety or welfare. A group of aggrieved landowners sought judicial review of the Board’s decision in the Circuit Court for Washington County. Washington County intervened in the case. While the petition for judicial review was pending, Perennial filed a motion for pre-appeal create negative visual impacts, generate glare, and create detrimental environmental and health impacts. 7 The Board granted Perennial’s special exception application by a vote of 3-1 and granted the application for a variance by a vote of 4-0. 4 determination challenging the circuit court’s subject matter jurisdiction on the ground of state law preemption by implication. Perennial argued that under PU § 7-207, the PSC has exclusive jurisdiction for approval of the proposed SEGS, including site location. Washington County and the aggrieved landowners opposed the motion, arguing that the legislative intent reveals that local regulation of SEGS, and particularly, their location, is not preempted by state law. After a hearing, the circuit court granted Perennial’s motion, holding that local zoning authority is preempted by PU § 7-207. The circuit court dismissed the petition for judicial review and remanded the matter to the Board with instructions to vacate its opinion and the grant of a special exception and variance. Washington County and the aggrieved landowners appealed the decision of the circuit court to the Court of Special Appeals. In a reported opinion, the intermediate appellate court applied Maryland case law outlining the applicable factors when considering the doctrine of implied preemption. Perennial Solar, 239 Md. App. 380. The Court of Special Appeals noted that “preemption by implication occurs when a local law ‘deals with an area in which the [General Assembly] has acted with such force that an intent by the State to occupy the entire field must be implied.’” Id. at 386 (quoting Talbot Cty.
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